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REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen) 9 October 1998 VOLUME XXII pp. 209-332 NATIONS UNIES - UNITED NATIONS Copyright (c) 2006 PART III Award of the Arbitral Tribunal in the first stage of the proceedings between Eritrea and Yemen (Territorial Sovereignty and Scope of the Dispute) Decision of 9 October 1998 Sentence du Tribunal arbitral rendue au terme de la première étape de la procédure entre l'Erythrée et la République du Yémen (Souveraineté territoriale et portée du différend) Décision du 9 octobre 1998 AWARD OF THE ARBITRAL TRIBUNAL IN THE FIRST STAGE OF THE PROCEEDINGS BETWEEN ERITREA AND YEMEN (TERRITORIAL SOVEREIGNTY AND SCOPE OF THE DISPUTE), 9 OCTOBER 1998 SENTENCE DU TRIBUNAL ARBITRAL RENDUE AU TERME DE LA PREMIERE ETAPE DE LA PROCEDURE ENTRE L'ERYTHREE ET LA REPUBLIQUE DU YEMEN (SOUVERAINETE TERRITORIALE ET PORTEE DU DIFFEREND), 9 OCTOBRE 1998 First phase of a two-stage award concerning a territorial sovereignty dispute and the de- limitation of maritime boundaries between Eritrea and Yemen — Determination of the scope of the dispute; concept of critical date. Concept of historic title — Claim, possession, use, continuity and confirmation of an an- cient title — Territorial acquisition; succession to title, effective occupation, acquisitive pre- scription, res nullius — Doctrine of reversion; lack of continuity. Treaties: res inter alios acta; erga omnes effect. Manifiestations of sovereignty: notion of governmental activity, acts of administration and control. Display of state and governmental authority over the territory: exercise of jurisidiction and state function on a continuous and peaceful basis are necessary for the acquisition or attribu- tion of territory — Standard of requirement — Pertinene of "effectivités". Probative value of maps — Principle of natural and geographical unity — Presumption of proximity, "appurtenance factor", portico doctrine. Première étape d'une sentence en deux parties concernant un différend portant sur la souveraineté territoriale et la délimitation des frontières maritimes entre l'Erythrée et la République du Yémen — Détermination de la portée du différend; notion de date critique. Notion de titre historique — Revendication, possession, usage, continuité et confirmation d'un titre ancient — Acquisition territoriale: succession au titre, occupation effective, prescrip- tion acquisitive, res nullius — Doctrine de réversion: défaut de continuité. Traites: res inter alios acta; effet erga omnes. Manifestations de la souveraineté: notion d'activité gouvernementale, d'actes administratifs et de contrôle. Exercice de l'autorité étatique et gouvernementale sur le territoire: l'exercise de la juridiction et de fonctions étatiques de manière continue et dans des conditions pacifiques sont indispensables à l'acquisition et a l'attribution du territoire — Norme applicable — Pertinence des "effectdivitiés". Valeur probante des cartes — Principe de l'unité naturelle et géographique — Présomption de proximité, "facteur d'appartenance", "portico doctrine". The Arbitral Tribunal: Professor Sir Robert Y. Jennings, President Judge Stephen M. Schwebel Dr. Ahmed Sadek El-Kosheri Mr. Keith Highet Judge Rosalyn Higgins 211 212 ERITREA / YEMEN Representatives of the Government of the State of Eritrea: His Excellency Mr. Haile Weldensae, Agent Professor Lea Brilmayer and Mr. Gary B. Born, Co-Agents Representative of the Government of the Republic of Yemen: His Excellency Dr. Abdulkarim Al-Eryani, Agent His Excellency Mr. Abdullah Ahmad Ghanim, Mr. Hussein Al-Hubaishi, Mr. Abdulwahid Al-Zandani and Mr Rodman R. Bundy, Co-Agents TERRITORIAL SOVEREIGNTY AWARD 213 THE GOVERNMENT OF THE STATE OF ERITREA AND THE GOVERNMENT OF THE REPUBLIC OF YEMEN AWARD OF THE ARBITRAL TRIBUNAL IN THE FIRST STAGE OF THE PROCEEDINGS (TERRITORIAL SOVEREIGNTY AND SCOPE OF THE DISPUTE) Chapter I. The setting up of the Arbitration and the Arguments of the Parties Introduction 1. This Award is rendered pursuant to an Arbitration Agreement dated 3 October 1996 (the "Arbitration Agreement"), between the Government of the State of Eritrea ("Eritrea") and the Government of the Republic of Yemen ("Yemen") (hereinafter "the Parties"). 2. The Arbitration Agreement was preceded by an "Agreement on Prin- ciples" done at Paris on 21 May 1996, which was signed by Eritrea and Yemen and witnessed by the Governments of the French Republic, the Federal Demo- cratic Republic of Ethiopia, and the Arab Republic of Egypt. The Parties re- nounced recourse to force against each other, and undertook to "settle their dis- pute on questions of territorial sovereignty and of delimitation of maritime bound- aries peacefully". They agreed, to that end, to establish an agreement instituting an arbitral tribunal. The Agreement on Principles further provided that ... concerning questions of territorial sovereignty, the Tribunal shall decide in accordance with the principles, rules and practices of international law applicable to the matter, and on the basis, in particular, of historic titles. 3. Concurrently with the Agreement on Principles, the Parties issued a brief a Joint Statement, emphasizing their desire to settle the dispute, and "to allow the re-establishment and development of a trustful and lasting cooperation between the two countries", contributing to the stability and peace of the region. 4. In conformity with article 1.1 of the Arbitration Agreement, Eritrea appointed as arbitrators Judge Stephen M. Schwebel and Judge Rosalyn Higgins, and Yemen appointed Dr. Ahmed Sadek El-Kosheri and Mr. Keith Highet. By an exchange of letters dated 30 and 31 December 1996, the Parties agreed to recommend the appointment of Professor Sir Robert Y. Jennings as President of the Arbitral Tribunal (hereinafter the "Tribunal"). The four arbi- trators met in London on 14 January 1997, and appointed Sir Robert Y. Jennings President of the Tribunal. 215 216 ERITREA / YEMEN 5. Having been duly constituted, the Tribunal held its first meetings on 14 January 1997, at Essex Court Chambers, 24 Lincoln's Inn Fields, London WCI, UK. The Tribunal took note of the meeting of the four arbitrators, and ratified and approved the actions authorized and undertaken threat. Pursuant to article 7.2 of the Arbitration Agreement, the Tribunal appointed as Registrar Mr. P.J.H. Jonkman, Secretary-General of the Permanent Court of Arbitration (the "PCA") at The Hague and, as Secretary to the Tribunal, Ms. Bette E. Shifman, First Secretary of the PCA, and fixed the location of the Tribunal's registry at the International Bureau of the PCA. 6. The Tribunal then held a meeting with Mr. Gary Born, Co-Agent of Eritrea, and Mr. Rodman Bundy, Co-Agent of Yemen, at which it notified them of the formation of the Tribunal and discussed with them certain practical matters relating to the arbitration proceedings. 7. Article 2 of the Arbitration Agreement provides that: 1. The Tribunal is requested to provide rulings in accordance with international law, in two-stages. 2. The first stage shall result in an award on territorial sovereignty and on the defini- tion of the scope of the dispute between Eritrea and Yemen. The Tribunal shall decide territorial sovereignty in accordance with the principles, rules and practices of international law applicable to the matter, and on the basis, in particular, of historic titles. The Tribunal shall decide on the definition of the scope of the dispute on the basis of the respective positions of the two Parties. 3. The second stage shall result in an award delimiting maritime boundaries. The Tri- bunal shall decide taking into account the opinion that it will have formed on questions of territorial sovereignty, the United Nations Convention on the Law of the Sea, and any other pertinent factor. 8. Pursuant to the time table set forth in the Arbitration Agreement for the various stages of the arbitration, the Parties submitted their written Memo- rials concerning territorial sovereignty and the scope of the dispute simulta- neously on 1 September 1997 and their Counter-Memorials on 1 December 1997. In accordance with the requirement of article 7.1 of the Arbitration Agree- ment that "the Tribunal shall sit in London" , the oral proceedings in the first stage of the arbitration were held in London, in the Durbar Conference Room of the Foreign and Commonwealth Office, from 26 January through 6 Febru- ary 1998, within the time limits for oral proceedings set forth in the Arbitration Agreement. The order of the Parties' presentations was determined by draw- ing lots, with Eritrea beginning the oral proceedings. 9. At the end of its session of 6 February 1998, the Tribunal, in accor- dance with article 8.3 of the Arbitration Agreement, closed the oral phase of the first stage of the arbitration proceedings between Eritrea and Yemen. The closing of the oral proceedings was subject to the undertaking of both Parties to answer in writing, by 23 February 1998, certain questions put to them by the Tribunal at the end of the hearings, including a question concerning the exist- ence of agreements for petroleum exploration and exploitation. It was also subject to the proviso in article 8.3 of the Arbitration Agreement authorizing the Tribunal to request the Parties' written views on the elucidation of any aspect of the matters before the Tribunal. TERRITORIAL SOVEREIGNTY AWARD 217 10. In its Communication and Order No. 3 of 10 May 1998, the Tribunal invoked this provision, requesting the Parties to provide, by 8 June 1998, writ- ten observations on the legal considerations raised by their responses to the Tribunal's earlier questions concerning concessions for petroleum exploration and exploitation and, in particular, on how the petroleum agreements and ac- tivities authorized by them might be relevant to the award on territorial sover- eignty. The Tribunal further invited the Parties to agree to hold a short oral hearing for the elucidation of these issues. 11. Following the exchange of the Parties' written observations, the Tri- bunal held oral hearings on this matter at the Foreign and Commonwealth Office in London on 6, 7 and 8 July 1998.
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